The remarkably unremarkable 'Gee-Gees case' and what it means

It was a cause célèbre that not only focused attention of the issue of sexual assault and violence, but also on the behaviour and treatment of star student athletes at the University of Ottawa, the largest post-secondary institution in Canada’s capital.

But in the wake of the judge’s not-guilty verdict — and the Crown’s decision not to appeal — the “Gee-Gees case” has fuelled questions about the complex nature of prosecuting sexual assault, and the lack of support in the justice system for alleged victims.

Within weeks of the alleged incident in a Thunder Bay hotel in February 2014, the university had suspended the Gee-Gees men’s hockey program. A few months later, head coach Réal Paiement was dismissed and the suspension of the team was twice extended through the 2015-16 season.

That decision would lead to legal action, with 22 members of the 2013-14 Gee-Gees filing a class-action claim for defamation against the university. That lawsuit is pending.

The only team members not included in the class action were captain and co-captain David Foucher and Guillaume Donovan, who were charged by Thunder Bay police with sexual assault in August 2014.

The alleged assault took place on Feb. 2, 2014, at a hotel when the Gee-Gees hockey team was in Thunder Bay for a pair of games against the Lakehead University Thunderwolves.

The alleged victim testified at Foucher and Donovan’s trial that she had engaged in consensual intercourse with another Gee-Gees player, Taylor Collins, after connecting through a dating app and meeting up at a bar. The woman alleged that, afterward, Collins disappeared and Foucher and Donovan sexually assaulted her.

A two-week trial was held in February, more than four years after the alleged assault, with Ontario Court Justice Chantal M. Brochu hearing testimony from seven individuals: the female complainant, identified only as M.S.; Foucher; Donovan; Paiement; and three others.

On June 25, Brochu released her verdict of not guilty for both Foucher and Donovan. On July 26, a spokesman for the provincial Ministry of the Attorney General said that, following a thorough review of the judge’s decision, the Crown had decided not to appeal.

That means the criminal case is officially over.

The most extraordinary aspect of the ruling is that it’s not extraordinary at all, say Dawn Moore of Carleton University and Rachel Chagnon of Université du Québec à Montréal, experts on sexual violence.

Systemic problem: “Every sexual assault judgment I’ve ever read”

Moore: I was reading the judgment this morning, sitting outside and having coffee with my partner, and saying, ‘This is every sexual assault judgment I’ve ever read. They never change.’ … Essentially, it’s a foregone conclusion that there will be an acquittal in any kind of sexual violence case. …

The number of times an accused person is convicted of sexual assault in the ways in which sexual assault usually happens, which is between intimate partners — it’s not women being pulled out of dark alleys at night — those cases have no convictions. I mean, the conviction rates are negligible. This is because this is a crime that’s impossible to prosecute. …

The way we define a criminal event is not the way people experience sexual violence. … ‘stranger danger’ is a mythology about sexual violence. I’ve never had a stranger-danger assault disclosed to me. I’ve probably had in my career 50 sexual assaults disclosed to me as a professor and not once did the person not know the perpetrator. And the statistics bear that out, too. I think maybe six or seven per cent of sexual assaults are stranger or unknown accused.

Chagnon: There’s one main thing I have found problematic about the judgment. It’s the grounds on which the judge decides not to accept M.S.’s testimony. It is true that the young woman has lied on the stand, which is about the worst thing a witness may do to appear unreliable. However, the concern of the judge, the reason why she chose to discard M.S.’s testimony with regard to consent to the relationship, is a bit problematic. The way she decides to contextualize the situation, it seems to me she puts much weight on the decision made by the witness not to come forward about the relationship with (Taylor) Collins, the guy with which she will exchange (text messages after the incident).

It’s not the main problem. She focuses on something that, as much as I am concerned, seems rather accidental and inconsequential with regard to the main issue: Did the young woman want to have a relationship, a sexual relationship, with Donovan, or did she not? …

I may not be completely neutral — I will admit to that — but I found the reflex of the judge to put a huge weight on the credibility of M.S., it looks to me like a sad reminiscence of the tendency of the courts to choose not to believe the victim.

Moore: If you read the decision of Justice (William B.) Horkins in the (2016 Jian) Ghomeshi case, he uses exactly the same language around the credibility of the victim.

It’s exactly the same scenario of mistaken consent. It’s exactly the language around alcohol use and other drug use, exactly the same language about victims telling different stories, changing their stories, perjuring themselves on the stand. What’s remarkable to me about this decision is that it’s not remarkable. It has become the norm, right, that victims should be framed this way and that there will be acquittals and these same narratives about how we expect victims to act like the ideal victims. That’s something that was made up by law, but it’s not actually the reality. There is no ideal victim of sexual violence. Some women might, in the aftermath of an assault, be very internally focused, just lay low, not want to draw attention to themselves. Others might want to report it right away. Others might seek crisis support. Others might just go on with their lives. Who knows? There are thousands of ways in which we can respond. But there’s only one way that the criminal law accepts and that is the woman who is able to consistently tell her story in a polite, reasonable and emotionally controlled way and is able to tell that same story over time.

The example that I always give people is, Have you ever been in a car accident? Do you remember every single second leading up to and after? Like that 10-second bracket around impact, do you recall every single thing? Would you swear in a court of law that your recollection was accurate about those 10 seconds? Could you be certain? That’s how trauma works. How we all function in a traumatic event is we remember it differently and memories come back in different ways and they’re recalled differently. Also, being on the stand in a court of law is scary and nerve-wracking and stressful. … I don’t think any of that makes to me a convincing argument that there was deliberate misleading of the court on the part of M.S. I think M.S. behaved like every other victim in sexual violence trials in really normal ways.

Chagnon: The problem is, and it’s often really a problem, it’s how the judge evaluates the demeanour of the victim, the propensity to be overwhelmingly severe with regard to what is expected from a victim: A victim should not lie. A victim should … At first, she goes and she tells us there is no such thing as a perfect victim and she has all the good words, but, when she puts those words in action, you see something that comes out that is still problematic. Maybe I’m very severe in my criticism because she’s not the only one. … If you compare the level of conviction in sexual assault cases versus the general level of conviction, Ontario courts have a tendency to — and I’m going to be severe, I know — to pretty much shield the perpetrators from the consequences of their actions.

(Statistics Canada data from 2011-16 showed 64 to 65 per cent of criminal charges laid in Canada annually resulted in guilty pleas or verdicts. The “guilty” rate for sexual assault was 41-46 per cent.

In Ontario, 34 to 37 per cent of sexual assault charges led to guilty pleas or verdicts, but 57.5-59.1 per cent of charges were stayed or withdrawn.

In Quebec, 54 to 66 per cent of sexual assault charges resulted in guilty pleas or verdicts. Stays or withdrawals occurred with 10.4-16.2 per cent of charges.)

A suggested reform: Courtroom “coaching” for complainants

Chagnon: On the other side of the ring, to use a sports metaphor, you have Donovan and he has a lawyer. He was really well coached, obviously, because you look at some statements that the judge reproduced of him and it appears the young man is a smart man and he was really well coached. He knew what to do, he knew what to say, to look good. To the judge, his testimony is one of the strongest and he’s honest. He never pretends that she said ‘yes’ because that would be going too far. He walked the line splendidly.

On the other side of the ring, you have the star witness and she obviously is in distress. … It appears to me that at no point did someone sit with her and just explain to her what is going on and explain to her what may happen if she is caught lying. If there is anything going forward, she has an interest to be honest and everything will be fine if she just tells the truth. It appears to me that there is a flaw there, and it really is an important flaw. When you look at different studies that have been made in recent years about how the victims of sexual violence and other types of violence, how they experience court, the main issue that they have with court is they have no one in their corner. …

In the system, the witnesses are only witnesses. The important person in the system is the accused, which is OK. I think we have a rather good system, but, in the case of sexual assault, the problem is the fact that the system has a very dark past about how they dealt with sexual assault.

Moore: I think what the difference is that Donovan had private, non-Legal Aid legal representation (Christian Deslauriers). That means a lawyer who has the time to spend on your case, which will make or break any case. …

Quebec has (Crime Victims Assistance Centre). In Ontario, we have any number of organizations, including rape crisis centres, that do victim court support work, but what they’re doing is supporting. They’re not helping victims. It really depends on who you get, but there is a knowledge gap for victims about how are you going to appear in court if you start giggling because you’re nervous. How’s that going to look to a judge? And you know that the private attorney is coaching his client to say, ‘Listen, if you giggle, that’s a nail in your coffin. You need a suit and tie and a haircut, solemn expression all the time.’ She’s not getting that coaching.

“Pressure” to prosecute

Chagnon: I would say that the Gee-Gees case — and it’s well-known as the Gee-Gees case — just like Ghomeshi and other cases, there are questions about how the prosecution went about this.

They were under a lot of pressure to press charges. It’s not that I want to accuse them of anything, but, if you look mostly at the other case that was at trial at the same time, the Foucher case — which he was acquitted, and I quite agree with the decision of the judge as regards to Foucher because the proof against him was slim at best — and it’s questionable why the prosecution decided to go with Foucher, too.

You cannot help but think that maybe, being under the pressure they were, they did not take the distance to reflect on this. I wonder if sometimes we want so much the prosecution to do something and we urge them to do something and we urge them to go into a course of action that will end up with a bad result, that we will only end up with victims being over-victimized and with a lot of people becoming more and more cynical about the system that doesn’t seem to be able to get convictions. …

“I say that because we had the same pattern with Ghomeshi. We had a prosecution that had to go fast. There was a lot of pressure to put charges against Ghomeshi and it ended very badly. I wonder, if this fantasy that we have about criminal law solving everything in regards to sexual assault, we should not become more realistic about all this and start to wonder about other ways to deal with that because, at the end of the day, what we want is to give a better environment. We want a better life for everyone and we want women to feel secure and we want men to not feel guilty every time they follow a woman on the street. Is it really by using criminal law that we’ll get there? I don’t believe that, and I think this is a case where the criminal system was asked a task that they could not deliver at the end.”

Prevention is the ultimate solution

Moore: For me, this decision highlights one more time that the criminal justice system is not the place for sexual violence to be addressed as a social ill. So the reform that I’m waiting for is when we can think about other responses to sexual violence, the first one being not responding, but preventing.

And I would like to see a lot more conversations about masculinity. I would like to see a lot more conversations about how men need to be involved against violence against women, how vital they are. I can go up in front of a classroom and talk about violence against women and I know the women are listening to me, but I know a lot of the men aren’t. We need men to be involved in that. It’s really important because it’s a human rights issue at the end of the day. It’s not a gender issue.

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